# C_2019399EN.01002003.xml

| 25.11.2019 | EN | Official Journal of the European Union | C 399/20 |
| --- | --- | --- | --- |

25.11.2019

EN

Official Journal of the European Union

C 399/20

---

Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 17 July 2019 — ALLIANZGI-FONDS AEVN v Autoridade Tributária e Aduaneira

(Case C-545/19)

(2019/C 399/25)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Applicant: ALLIANZGI-FONDS AEVN

Defendant: Autoridade Tributária e Aduaneira

Questions referred

| 1. | Does either Article 56 [EC] (now Article 63 TFEU) on the free movement of capital or Article 49 [EC] (now Article 56 TFEU) on freedom to provide services preclude tax rules such as those at issue in the main proceedings, contained in Article 22 of the Estatuto dos Benefícios Fiscais (Statute of Tax Benefits), which provide for a withholding to be made, in full discharge of liability, from dividends distributed by Portuguese companies and received by collective investment undertakings not resident in Portugal and established in other EU [Member States], whereas collective investment undertakings formed under Portuguese tax law and resident for tax purposes in Portugal can benefit from an exemption from the withholding at source made on the said income? |
| --- | --- |

1.

Does either Article 56 [EC] (now Article 63 TFEU) on the free movement of capital or Article 49 [EC] (now Article 56 TFEU) on freedom to provide services preclude tax rules such as those at issue in the main proceedings, contained in Article 22 of the Estatuto dos Benefícios Fiscais (Statute of Tax Benefits), which provide for a withholding to be made, in full discharge of liability, from dividends distributed by Portuguese companies and received by collective investment undertakings not resident in Portugal and established in other EU [Member States], whereas collective investment undertakings formed under Portuguese tax law and resident for tax purposes in Portugal can benefit from an exemption from the withholding at source made on the said income?

| 2. | In providing for a withholding to be made at source in respect of dividends paid to non-resident collective investment undertakings and in making the possibility of obtaining an exemption from such a withholding at source available only to resident collective investment undertakings, does the national legislation at issue in the main proceedings treat dividends paid to non-resident collective investment undertakings less favourably, in that such undertakings are wholly unable to take advantage of the aforesaid exemption? |
| --- | --- |

2.

In providing for a withholding to be made at source in respect of dividends paid to non-resident collective investment undertakings and in making the possibility of obtaining an exemption from such a withholding at source available only to resident collective investment undertakings, does the national legislation at issue in the main proceedings treat dividends paid to non-resident collective investment undertakings less favourably, in that such undertakings are wholly unable to take advantage of the aforesaid exemption?

| 3. | For the purposes of assessing whether the Portuguese legislation that establishes specific and different tax treatment for (i) (resident) collective investment undertakings and for (ii) the shareholders or unitholders in collective investment undertakings is discriminatory, are the tax rules that apply to the shareholders or unitholders in the collective investment undertaking relevant? Or, bearing in mind that the tax rules for resident collective investment undertakings are not affected or altered in any way by whether or not their shareholders or unitholders are resident in Portugal, in order to determine whether situations are comparable for the purposes of assessing whether the said legislation is discriminatory, should regard be had only to tax treatment at the level of the investment vehicle? |
| --- | --- |

3.

For the purposes of assessing whether the Portuguese legislation that establishes specific and different tax treatment for (i) (resident) collective investment undertakings and for (ii) the shareholders or unitholders in collective investment undertakings is discriminatory, are the tax rules that apply to the shareholders or unitholders in the collective investment undertaking relevant? Or, bearing in mind that the tax rules for resident collective investment undertakings are not affected or altered in any way by whether or not their shareholders or unitholders are resident in Portugal, in order to determine whether situations are comparable for the purposes of assessing whether the said legislation is discriminatory, should regard be had only to tax treatment at the level of the investment vehicle?

| 4. | Is the difference in treatment between collective investment undertakings resident in Portugal and not resident in Portugal permissible, having regard to the fact that natural or legal persons resident in Portugal who hold shares or units in collective investment undertakings (whether resident or non-resident) are, in both cases, subject in the same way to tax on income distributed by collective investment undertakings (and are generally not exempt), even if non-resident shareholders or unitholders are liable to a higher level of tax? |
| --- | --- |

4.

Is the difference in treatment between collective investment undertakings resident in Portugal and not resident in Portugal permissible, having regard to the fact that natural or legal persons resident in Portugal who hold shares or units in collective investment undertakings (whether resident or non-resident) are, in both cases, subject in the same way to tax on income distributed by collective investment undertakings (and are generally not exempt), even if non-resident shareholders or unitholders are liable to a higher level of tax?

| 5. | Having regard to the fact that the discrimination at issue in these proceedings concerns a difference in the taxation of dividend income distributed by resident collective investment undertakings to their shareholders or unitholders, when it comes to assessing whether the taxation of the income is comparable, is it lawful to take account of other taxes, levies or charges payable in respect of the investments made by collective investment undertakings? In particular, in order to analyse whether the situations are comparable, is it lawful and permissible to take account of the impact of taxes on assets or costs, or of other types of tax, rather than limiting the examination strictly to the tax on the income of collective investment undertakings, including any specific taxes? |
| --- | --- |

5.

Having regard to the fact that the discrimination at issue in these proceedings concerns a difference in the taxation of dividend income distributed by resident collective investment undertakings to their shareholders or unitholders, when it comes to assessing whether the taxation of the income is comparable, is it lawful to take account of other taxes, levies or charges payable in respect of the investments made by collective investment undertakings? In particular, in order to analyse whether the situations are comparable, is it lawful and permissible to take account of the impact of taxes on assets or costs, or of other types of tax, rather than limiting the examination strictly to the tax on the income of collective investment undertakings, including any specific taxes?

---